Citation Nr: 0205593
Decision Date: 05/30/02 Archive Date: 06/11/02
DOCKET NO. 02-04 192 ) DATE
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THE ISSUE
Whether an April 1983 decision by the Board of Veterans'
Appeals (Board) was clearly and unmistakably erroneous in
denying a rating in excess of 10 percent for anxiety
reaction.
REPRESENTATION
Moving party represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The veteran had active duty from September 1975 to September
1977.
In an April 1983 decision, the Board denied an increased
rating in excess of 10 percent for the veteran's service-
connected anxiety reaction.
In a statement received by the RO in September 1997, the
veteran asserted that prior rating decisions of the
Montgomery, Alabama, regional office (RO) which awarded and
then continued a rating of 10 percent for his service-
connected neuropsychiatric disorder were clearly and
unmistakably erroneous. One such rating decision, dated in
February 1982, was affirmed by the Board of Veterans' Appeals
(Board). When a determination of the agency of original
jurisdiction is affirmed by the Board, such determination is
subsumed by the final appellate decision. 38 C.F.R. §
20.1104. Therefore, the RO's decision is not reviewable for
clear and unmistakable error (CUE) because it merges with the
Board decision and ceased to have any independent effect once
the Board renders a final decision. See Donovan v. West, 158
F.3d 1377 (Fed. Cir. 1998); Talbert v. Brown, 7 Vet. App.
352, 355 (1995); VAOPGCPREC 14-95, 60 Fed. Reg. 43185 (1995).
On November 21, 1997, Public Law 105-111 (codified at 38
U.S.C.A. §§ 5109A and 7111) was enacted to permit revisions
of Board decisions on the basis of CUE. 38 U.S.C.A. §
7111(a). Review to determine whether CUE exists in a final
Board decision may be initiated by the Board, on its own
motion, or by a party to the decision. 38 C.F.R. § 20.1400.
Such motions are subject to filing and pleading rules. 38
C.F.R. § 20.1404.
In order to afford the veteran the opportunity to properly
file a motion for review of a prior Board decision based on
CUE, the Board sent a letter dated in November 2000 to him
requesting that he clarify the decision of the Board, if any,
the he wished to have considered. Thereafter, in
correspondence received in January 2002, the veteran
specified that he was raising CUE in the April 1983 Board
decision. His motion for review of this prior Board decision
based on CUE met the pleading requirements and is addressed
in this decision. However, the veteran's claim that rating
decisions prior to the February 1982 rating decision were
clearly and unmistakably erroneous has not been adjudicated
by the RO. That claim is referred to the RO for appropriate
action.
FINDINGS OF FACT
1. In an April 1983 rating decision, the Board denied a
rating in excess of 10 percent for anxiety reaction.
2. The evidence does not show that the correct facts, as
they were known at the time, were not before the Board or
that the pertinent statutory or regulatory provisions were
incorrectly applied in the April 1983.
CONCLUSION OF LAW
The April 1983 decision in which the Board denied a rating in
excess of 10 percent for anxiety reaction was not clearly and
unmistakably erroneous. 38 U.S.C.A. § 7111 (West 1991); 38
C.F.R. § 20.1403 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In May 2001, the United States Court of Appeals for Veterans
Claims ("the Court") issued an order vacating the Board's
December 1999 decision for further proceedings in compliance
with the Veterans Claims Assistance Act of 2000 (VCAA).
However, the Board must point out at this juncture that the
Court has determined that VCAA has no applicability to this
case. See Livesay v. Principi, 15 Vet. App. 165 (2001) (en
banc) (VCAA not applicable to CUE).
Background
The veteran had active duty from September 1975 to September
1977.
The service medical records are on file.
In October 1977, the veteran applied for VA benefits. In his
application, he stated that he had a bad nervous condition.
In conjunction with his claim, he was afforded a VA
psychiatric examination in October 1977. The diagnosis was
anxiety neurosis with depression and there might be a carry-
over from the self-induced drug episodes.
In a November 1977 rating decision, service connection was
granted for anxiety neurosis with depression. This
disability was assigned a 10 percent rating under Diagnostic
Code 9400, effective September 23, 1977. The effective date
assigned was the day after his release from active duty.
In November 1978, a medical report was received from Shelby
G. Bruton, M.D. Dr. Bruton stated that he treated the
veteran that month. The physician noted that it was
difficult to determine the veteran's prognosis, but it was
probably at least fair with psychotherapy and medication. In
a November 1978 rating decision, the prior 10 percent rating
for anxiety neurosis with depression was confirmed and
continued.
A VA Form 10-7132 was received which showed that the veteran
had been hospitalized from June 14, 1980 to July 4, 1980 for
anxiety with depression. The actual hospitalization report
showed that he was hospitalized until July 7, 1980.
Psychological testing revealed slight cortical dysfunction
consistent with his past use of "PCP." Upon discharge, he
was considered to be competent and able to resume his
rehospitalization activities. Based on the hospitalization,
the veteran was assigned a temporary total rating.
Thereafter, the veteran was hospitalized for another week in
July 1980. The hospitalization report showed that
psychological testing was consistent with substance abuse.
In an August 1980 rating decision, the veteran's 10 percent
disability rating for anxiety neurosis with depression was
confirmed and continued.
In October 1980, the veteran was hospitalized for anxiety
neurosis with depression. In a November 1980 rating
decision, the veteran was assigned a temporary total rating
from October 3, 1980.
In 1981, a VA hospital summary was received showing
hospitalization from October 3, 1980 to March 1981. During
that hospitalization, the veteran was diagnosed as having
schizophrenia, chronic, undifferentiated type. A follow-up
letter from a VA staff physician which stated that the
veteran had been diagnosed as having anxiety reaction with
depressive features manifested by anxiety, depression,
suicidal thoughts, hallucinations, and a generalized
inability to adjust to the role of wage earner or student.
With continued observation, it was this physician's opinion
that the final diagnosis was schizophrenia, chronic,
undifferentiated type, which he believed was a maturation of
the veteran's service-connected anxiety neurosis with
depression.
In an August 1981 rating decision, a temporary total rating
based on hospitalization from October 3, 1980 to April 1,
1981 was assigned. Thereafter, the prior 10 percent rating
was reinstated for anxiety neurosis with depression.
In an October 1981 rating decision, it was noted that the
veteran had been hospitalized since September 6, 1981, for
anxiety neurosis with depression, therefore, the RO assigned
a temporary total rating from that date.
In January 1982, a VA hospital summary for the period of
September 6, 1981 to January 4, 1982 was received which
showed hospitalization for anxiety reaction and passive-
aggressive personality. Upon discharge, it was noted that he
was competent for VA purposes and able to be gainfully
employed.
In a February 1982 rating decision, the veteran was assigned
a temporary total rating from September 6, 1981 to January
31, 1982. Thereafter, the prior 10 percent rating was
reinstated. The veteran disagreed with the reassignment of
the 10 percent rating for his anxiety neurosis with
depression and perfected that appeal to the Board. In
September 1982, the Board remanded this case to the RO in
order to clarify the veteran's current diagnosis and level of
severity of any psychiatric disorder present. It was noted
that past records had reflected diagnosis of schizophrenia,
chronic, undifferentiated type; anxiety disorder; and
personality disorder.
In October 1982, the veteran was afforded a VA psychiatric
examination. The veteran's past history was reviewed.
Mental status examination revealed that the veteran's
attitude was one of chronic frustration, that he could not
take stress, and that he had been married for two weeks and
then kicked his wife out of bed. He expressed that he could
not get along with anybody and that whenever he tried to do
things, they went wrong. He felt intermittently jittery and
jumpy. His facial expressions were appropriate and sometimes
showed disappointment at his inability to get a job and to
support his wife. He did not show any abnormal motor
activity and there were no disorders of speech. His memory
was not impaired and he had no difficulty with retention or
immediate recall. He had an appropriate fund of general
information. There was no gross impairment of his judgment.
His content and thought dwelt primarily on his military
service. The veteran claimed that he wanted to kill himself
with the "PCP" during service, but he could not explain why
other than to say that he did not like the military and he
was determined to get out one way or another. Almost
immediately, he stated that he liked the infantry and liked
shooting a gun. He indicated that he tried to reenlist, but
was told that he could not. He stated that during service,
he hit people with lead pipes and the butt of his gun when
they made him angry. Initially, during the interview, he
related that he was hearing voices telling him that people
were plotting against him, but later he spontaneously stated
that he did not hear any voices, that was just his lifestyle
and the way that he felt. He described chronic frustration
and minor events occurring rather frequently. He stated that
he got along better when he was by himself and there was not
any noise. He related that when people came around, he
started to "space out." Insofar as the examiner could
determine, the veteran did not lose contact with reality when
he spaces out, but gets angry and bored with people or with
whatever was going on around him.
The examiner stated that the veteran was competent. The
examiner opined that the veteran primarily had a personality
disorder characterized by an inability to maintain
significant interpersonal relationships, irritability,
aggressiveness, impulsiveness, recklessness, an inability to
sustain consistent work behavior with multiple job changes
and more recently not being work-oriented at all. The
veteran seemed to resort to a lifestyle characterized by a
pattern of unstable interpersonal relationships with shifts
of attitude, manipulation, inappropriate anger, disturbance
in self image and long-term goals, complaints and reports of
affect instability characterized by some depression,
irritability lasting only a short period of time, chronic
feelings of boredom, and suicidal gestures. The examiner
stated that the veteran had a borderline personality
disorder.
In the April 1983 Board decision, the Board referred to the
recent VA examination report which determined that the
veteran primarily had a personality disorder. The veteran
was not service-connected for a personality disorder. The
veteran was service-connected for anxiety neurosis with
depression. The Board found that the manifestations
attributable to the service-connected neurosis were not
indicative of more than moderate social and industrial
inadaptability under Diagnostic Code 9400. At that time,
Diagnostic Code 9400 provided a 10 percent rating where there
was emotional tension or other evidence of anxiety productive
of moderate social and industrial impairment. A 30 percent
rating was warranted for definite impairment in the ability
to establish or maintain effective and wholesome
relationships with people and the psychoneurotic symptoms
resulted in such reduction in initiative, flexibility,
efficiency, and reliability to levels as to produce
considerable industrial impairment.
Accordingly, the Board concluded that the manifestations the
veteran's anxiety reaction did not warrant a rating in excess
of 10 percent. 38 U.S.C. § 355; 38 C.F.R. Part 4 and
Diagnostic Code 9400.
Analysis
In his motion for reconsideration and to have the April 1983
revised on the basis of CUE, the veteran stated that the
veteran's service medical records and post-service records
were not properly reviewed or considered. The veteran points
to the various service and post-service medical records with
regard to listed symptomatology and diagnoses.
The Court has set forth a three-pronged test to determine
whether clear and unmistakable error is present in a prior
determination: ( 1) either the correct facts, as they were
known at the time, were not before the adjudicator (i.e.,
more than a simple disagreement as to how the facts were
weighed or evaluated) or the statutory or regulatory
provisions extant at the time were incorrectly applied, (2)
the error must be undebatable and of the sort which, had it
not been made, would have manifestly changed the outcome at
the time it was made, and (3) a determination that there was
CUE must be based on the record and law that existed at the
time of the prior adjudication in question. Damrel v. Brown,
6 Vet. App. 242, 245 (1994), (quoting Russell v. Principi, 3
Vet. App. 310, 313-14 (1992) (en banc)).
The Court has further stated that a CUE is a very specific
and a rare kind of error. It is the kind of error, of fact
or of law, that when called to the attention of later
reviewers compels the conclusion, to which reasonable minds
could not differ, that the result would have been manifestly
different but for the error. Thus, even where the premise of
error is accepted, if it is not absolutely clear that a
different result would have ensued, the error complained of
cannot be, ipso facto, clear and unmistakable. Fugo v.
Brown, 6 Vet. App. 40, 43-44 (1993).
The mere misinterpretation of facts does not constitute clear
and unmistakable error. Thompson v. Derwinski, 1 Vet. App.
251, 253 (1991). Moreover, the error must be one which would
have manifestly changed the outcome at the time that it was
made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993).
Moreover, an alleged failure in the duty to assist may never
form the basis of a valid claim of CUE, because it
essentially is based upon evidence that was not of record at
the time of the earlier decision. See Elkins v. Brown, 8
Vet. App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377,
384 (1994).
The regulations governing clear and unmistakable error in a
decision of the Board appear at 38 C.F.R. §§ 20.1400-1411
(2001). Section 20.1403 provides: (a) General. Clear and
unmistakable error is a very specific and rare kind of error.
It is the kind of error, of fact or of law, that when called
to the attention of later reviewers compels the conclusion,
to which reasonable minds could not differ, that the result
would have been manifestly different but for the error.
Generally, either the correct facts, as they were known at
the time, were not before the Board, or the statutory and
regulatory provisions extant at the time were incorrectly
applied.
(b) Record to be reviewed. -- (1) General. Review for
clear and unmistakable error in a prior Board decision must
be based on the record and the law that existed when that
decision was made.
(2) Special rule for Board decisions issued on or after July
21, 1992. For a Board decision issued on or after July 21,
1992, the record that existed when that decision was made
includes relevant documents possessed by the Department of
Veterans Affairs not later than 90 days before such record
was transferred to the Board for review in reaching that
decision, provided that the documents could reasonably be
expected to be part of the record.
(c) Errors that constitute clear and unmistakable error. To
warrant revision of a Board decision on the grounds of clear
and unmistakable error, there must have been an error in the
Board's adjudication of the appeal which, had it not been
made, would have manifestly changed the outcome when it was
made. If it is not absolutely clear that a different result
would have ensued, the error complained of cannot be clear
and unmistakable.
(d) Examples of situations that are not clear and
unmistakable error. -- (1) Changed diagnosis. A new medical
diagnosis that "corrects" an earlier diagnosis considered in
a Board decision.
(2) Duty to assist. The Secretary's failure to fulfill the
duty to assist.
(3) Evaluation of evidence. A disagreement as to how the
facts were weighed or evaluated.
(e) Change in interpretation. Clear and unmistakable error
does not include the otherwise correct application of a
statute or regulation where, subsequent to the Board decision
challenged, there has been a change in the interpretation of
the statute or regulation.
In light of the foregoing, the veteran must argue that either
the correct facts were not considered by the Board or that
applicable laws and regulations were not correctly applied in
the decision at issue. Such a determination must be based on
the record and the law that existed at the time of that
decision. Eddy v. Brown, 9 Vet. App. 52, 57 (1996).
The Board notes that an analysis of the facts of the case and
application of the relevant law leads to the conclusion that
the Board's April 1983 decision was not clearly and
unmistakably erroneous.
As noted, an example what is not clearly and unmistakably
erroneous is: evaluation of evidence, a disagreement as to
how the facts were weighed or evaluated. The Board's
decision to deny entitlement to an evaluation in excess of 10
percent for anxiety reaction was based on the evidence of
record to include the service medical records, the post-
service medical records, and the veteran's contentions. The
Board specifically remanded this veteran's case for a VA
psychiatric examination in order to resolve the current
diagnosis or diagnoses of psychiatric impairment and to
determine the current level thereof. The record was replete
with various diagnoses of psychiatric disorders. The veteran
was only service-connected for one psychiatric disorder. The
VA examination, which included a full review of the record,
concluded that the veteran primarily had a personality
disorder and the current manifestations thereof were
identified. It is clear that the Board found this
examination to be the most probative evidence of record given
the fact that the examiner examined the veteran and conducted
a review of the record. Although the veteran and his
representative essentially argue that other evidence of
record, i.e., the service medical records and other post-
service medical evidence, should have been afforded more
probative weight, this type of disagreement by them does not
constitute CUE.
Rather, their argument comes within the parameters of the
Board's evaluation of the evidence. In addition, the
determination that the more recent VA examination be afforded
more probative weight in evaluating the veteran's current
level of disability than prior medical records also comes
within the parameters of the Board's evaluation of the
evidence. The Board determined that an evaluation in excess
of 10 percent for service-connected anxiety reaction was not
warranted. The Board's decision to place the most probative
weight on the more recent post-service VA examination is an
evaluation of the evidence. A disagreement as to how the
facts were weighed and evaluated is not CUE.
In addition, any determination of the Board not to afford the
veteran another VA examination or obtain other evidence would
be a consideration of whether VA's duty to assist was
fulfilled. As noted, examples of situations that are not CUE
include: VA's failure to fulfill the duty to assist and a
disagreement as to how the facts were weighed or evaluated.
The Board finds that the April 1983 Board decision which
denied an evaluation in excess of 10 percent represented
proper application of the facts then before the Board to the
law then in existence. The veteran and his representative
have not alleged that the correct facts, as they were known
at the time, were not before the Board, or the statutory and
regulatory provisions extant at the time were ignored or
incorrectly applied. The basic argument advanced concerning
CUE has to do with the weight given to the evidence at the
time of the Board's April 1983 decision, specifically,
affording probative weight to the most recent post-service VA
examination. As noted above, a disagreement with how the
facts were weighed or evaluated does not constitute CUE. 38
C.F.R. § 20.1403(d)(3).
Accordingly, the Board concludes that the April 1983 decision
in which the Board denied a rating in excess of 10 percent
for anxiety reaction was not clearly and unmistakably
erroneous.
ORDER
The motion is denied.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597B that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? In the section entitled "Appeal to the United States
Court of Appeals for Veterans Claims," you are no
longer required to file a copy of your Notice of Appeal
with VA's General Counsel.
? In the section entitled "Representation before VA,"
you no longer need to have filed a "notice of
disagreement ... that led to the decision the Board has
just reviewed for CUE ... on or after November 18, 1988"
as a condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.